H. B. 4332
(By Delegate Guthrie, Perdue, Marshall, Hatfield, Mahan, M.
Poling, Fragale, Brown, Staggers and Fleischauer)
[Introduced
February 4, 2010
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §21A-5-7 of the Code of West Virginia,
1931, as amended; and to amend and reenact §21A-6-1 and §21A-
6-3 of said code, all relating to permitting certain part-time
employees to be eligible for unemployment compensation
benefits; permitting employees who have left employment due to
being victims of domestic violence, sexual assault or stalking
to be eligible for unemployment compensation benefits;
permitting employees who have left employment to care for
disabled or ill immediate family members to be eligible for
unemployment compensation benefits; and permitting employees
who have left employment due to the work-related transfer or
relocation of a spouse to be eligible for unemployment
compensation benefits.
Be it enacted by the Legislature of West Virginia:
That §21A-5-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §21A-6-1 and §21A-6-3 of said
code be amended and reenacted, all to read as follows:
ARTICLE 5. EMPLOYER COVERAGE AND RESPONSIBILITY.
§21A-5-7. Joint and separate accounts.
(1) The commissioner shall maintain a separate account for each
employer, and shall credit his
or her account with all contributions
paid by him
or her prior to July 1, 1961. On and after July 1,
1961, the commissioner shall maintain a separate account for each
employer, and shall credit said employer's account with all
contributions of such employer in excess of seven tenths of one
percent of taxable wages; and on and after July 1, 1971, the
commissioner shall maintain a separate account for each employer,
and shall credit said employer's account with all contributions of
such employer in excess of four tenths of one percent of taxable
wages:
Provided, That any adjustment made in any employer's account
after the computation date shall not be used in the computation of
the balance of an employer until the next following computation
date:
Provided, however, That nothing in this chapter shall be
construed to grant an employer or individual in his
or her service
prior claims or rights to the amounts paid by him
or her into the
fund, either on his
or her behalf or on behalf of such individuals.
The account of any employer which had been inactive for a period of
four consecutive calendar years shall be terminated for all
purposes.
(2) Benefits paid to an eligible individual for regular and extended total or partial unemployment beginning after the effective
date of this article shall be charged to the account of the last
employer with whom he
or she has been employed as much as thirty
working days, whether or not such days are consecutive:
Provided,
That no employer's account shall be charged with benefits paid to
any individual who has been separated from a noncovered employing
unit in which he
or she was employed as much as thirty days, whether
or not such days are consecutive:
Provided, however, That no
employer's account shall be charged with more than fifty percent of
the benefits paid to an eligible individual as extended benefits
under the provisions of article six-a of this chapter:
Provided
further, That state and local government employers shall be charged
with one hundred percent of the benefits paid to an eligible
individual as extended benefits. Beginning on July 1, 1984,
benefits paid to an individual are to be charged to the accounts of
his
or her employers in the base period, the amount of such charges,
chargeable to the account of each such employer, to be that portion
of the total benefits paid such individual as the wages paid him
or
her by such employer in the base period are to the total wages paid
him
or her during his
or her base period for insured work by all his
or her employers in the base period. For the purposes of this
section, no base period employer's account shall be charged for
benefits paid under this chapter to a former employee, provided such
base period employer furnishes separation information within
fourteen days from the date the notice was mailed or delivered, which results in a disqualification under the provision set forth
in subsection one, section three, article six, or subsection two,
section three, article six of this chapter or would have resulted
in a disqualification under such subsection except for a subsequent
period of covered employment by another employing unit.
No
contributory base period employer's experience rating account may
be charged for benefits paid under this chapter to an individual who
left work voluntarily but was not disqualified pursuant to
subdivision (1), section three, article six of this chapter.
Further, no contributory base period employer's experience rating
account shall be charged for benefits paid under this chapter to an
individual who has been continuously employed by that employer on
a part-time basis, if the part-time employment continues while the
individual is separated from other employment and is otherwise
eligible for benefits. One half of extended benefits paid to an
individual after July 1, 1984, and subsequent years are to be
charged to the accounts of his
or her employers, except state and
local government employers, in the base period in the same manner
provided for the charging of regular benefits. Effective January
1, 1988, the entire state share of extended benefits paid to an
individual shall be charged to the accounts of his
or her base
period employers. The provisions of this section permitting the
noncharging of contributory employers' accounts have no application
to benefit charges imposed upon reimbursable employers.
(3) The commissioner shall, for each calendar year hereafter, classify employers in accordance with their actual experience in the
payment of contributions on their own behalf and with respect to
benefits charged against their accounts, with a view of fixing such
contribution rates as will reflect such experiences. For the
purpose of fixing such contribution rates for each calendar year,
the books of the department shall be closed on July 31 of the
preceding calendar year, and any contributions thereafter paid, as
well as benefits thereafter paid with respect to compensable weeks
ending on or before June 30 of the preceding calendar year, shall
not be taken into account until the next annual date for fixing
contribution rates:
Provided, That if an employer has failed to
furnish to the commissioner on or before July 31 of such preceding
calendar year the wage information for all past periods necessary
for the computation of the contribution rate, such employer's rate
shall be, if it is immediately prior to such July 31, less than
three and three-tenths percent, increased to three and three-tenths
percent:
Provided, however, That any payment made or any
information necessary for the computation of a reduced rate
furnished on or before the termination of an extension of time for
such payment or reporting of such information granted pursuant to
a regulation of the commissioner authorizing such extension, shall
be taken into account for the purposes of fixing contribution rates:
Provided further, That when the time for filing any report or making
any payment required hereunder falls on Saturday, Sunday, or a legal
holiday, the due date shall be deemed to be the next succeeding business day:
And provided further, That whenever, through mistake
or inadvertence, erroneous credits or charges are found to have been
made to or against the reserved account of any employer, the rate
shall be adjusted as of January 1 of the calendar year in which such
mistake or inadvertence is discovered, but payments, made under any
rate assigned prior to January 1 of such year, shall not be deemed
to be erroneously collected.
(4) The commissioner may prescribe regulations for the
establishment, maintenance and dissolution of joint accounts by two
or more employers, and shall, in accordance with such regulations
and upon application by two or more employers to establish such an
account, or to merge their several individual accounts in a joint
account, maintain such joint account as if it constituted a single
employer's account.
(5) State and local government employers are hereby authorized
to enter into joint accounts and to maintain such joint account or
accounts as if it or they constituted a single employer's account
or accounts.
(6) Effective on and after July 1, 1981, if an employer has
failed to furnish to the commissioner on or before August 31, 1980,
and each year thereafter, with the exception of 1981, which due date
shall be September 30, 1981, the wage information for all past
periods necessary for the computation of the contribution rate, such
employer's rate shall be, if it is immediately prior to July 1,
1981, less than seven and five-tenths percent, increased to seven and five-tenths percent.
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-1. Eligibility qualifications.
An unemployed individual shall be eligible to receive benefits
only if the commissioner finds that:
(1) He
or she or she has registered for work at and thereafter
continues to report at an employment office in accordance with the
regulations of the commissioner;
(2) He
or she or she has made a claim for benefits in
accordance with the provisions of article seven of this chapter and
has furnished his or her Social Security number, or numbers if he
or she has more than one such number;
(3) He
or she or she is able to work and is available for full-
time work for which he or she is fitted by prior training or
experience
that is full-time or, if the individual's work from which
he or she was separated was part-time, that is at least the number
of hours that the individual worked for that employer in the month
before the individual's most recent separation from that employer,
and is doing that which a reasonably prudent person in his or her
circumstances would do in seeking work;
(4) He or she or she has been totally or partially unemployed
during his or her benefit year for a waiting period of one week
prior to the week for which he or she claims benefits for total or
partial unemployment;
(5) He or she or she has within his or her base period been paid wages for employment equal to not less than $2,200 and must
have earned wages in more than one quarter of his or her base period
or, if he or she is not eligible under his or her base period, has
within his or her alternative base period been paid wages for
employment equal to not less than $2,200 and must have earned wages
in more than one quarter of his or her alternative base period; and
(6) He or she or she participates in reemployment services,
such as job search assistance services, if the individual has been
determined to be likely to exhaust regular benefits and needs
reemployment services pursuant to a profiling system established by
the commissioner, unless the commissioner determines that:
(a) The individual has completed such services; or
(b) There is justifiable cause for the claimant's failure to
participate in such services.
§21A-6-3. Disqualification for benefits.
Upon the determination of the facts by the commissioner, an
individual shall be disqualified for benefits:
(1) For the week in which he or she left his or her most recent
work voluntarily without good cause involving fault on the part of
the employer and until the individual returns to covered employment
and has been employed in covered employment at least thirty working
days.
(A) For the purpose of this subdivision, an individual shall
not be deemed to have left his or her most recent work voluntarily
without good cause involving fault on the part of the employer, if such individual leaves his or her most recent work with an employer
and if he or she in fact, within a fourteen-day calendar period,
does return to employment with the last preceding employer with whom
he or she was previously employed within the past year prior to his
or her return to workday, and which last preceding employer, after
having previously employed such individual for thirty working days
or more, laid off such individual because of lack of work, which
layoff occasioned the payment of benefits under this chapter or
could have occasioned the payment of benefits under this chapter had
such individual applied for such benefits. It is the intent of this
paragraph to cause no disqualification for benefits for such an
individual who complies with the foregoing set of requirements and
conditions. Further, for
(B) For the purpose of this subdivision, an individual shall
not be deemed to have left his or her most recent work voluntarily
without good cause involving fault on the part of the employer, if
such individual was compelled to leave his or her work for his or
her own health-related reasons and notifies the employer prior to
leaving the job or within two business days after leaving the job
or as soon as practicable and presents written certification from
a licensed physician within thirty days of leaving the job that his
or her work aggravated, worsened or will worsen the individual's
health problem.
(C) For the purpose of this subdivision, an individual may not
be disqualified if the individual left his or her most recent work due to domestic violence by a family or household member, stalking
or sexual assault by a person who is not a family or household
member, if the domestic violence, stalking or sexual assault is
verified by reasonable documentation, and if the domestic violence,
stalking or sexual assault causes the individual to reasonably
believe that the individual's continuing employment would jeopardize
the safety of the individual or an immediate family member. For the
purposes of this paragraph:
(I) The term "domestic violence" has the same meaning as it has
in section two hundred two, article twenty-seven, chapter forty-
eight of this code;
(ii) The term "stalking" has the same meaning as it has in
section nine-a, article two, chapter sixty-one of this code; and
(iii) The term "sexual assault" includes sexual assault in the
first, second and third degrees pursuant to sections three, four and
five, article eight-b, chapter sixty-one of this code, sexual abuse
in the first, second and third degrees pursuant to section seven,
eight and nine, article eight-b, chapter sixty-one of this code, and
battery pursuant to section nine, article two, chapter sixty-one of
this code if the battery was the result of "sexual contact" as
defined in section one, article eight-b, chapter sixty-one of this
code.
(D) For the purposes of paragraph (C) of this subdivision
reasonable documentation of domestic violence, stalking or sexual
assault includes one or more of the following:
(I) A court order of protection;
(ii) An order of bail, bond or parole restricting contact by
the alleged perpetrator with the alleged victim;
(iii) A written certification by a licensed physician or a
licensed physician's assistant of medical findings consistent with
domestic violence, stalking or sexual assault;
(iv) A copy of a police report the allegations of which
constitute domestic violence, stalking or sexual assault;
(v) A notarized certification that one of the following has
evaluated the individual's statements and circumstances and based
on that evaluation is providing services for domestic violence,
stalking or sexual assault: A licensed clinical psychologist,
licensed clinical social worker, certified social worker, licensed
professional counselor, licensed marriage and family therapist, or
a service provider employed by a licensed domestic violence program
or by rape crisis center which meets the standards of the West
Virginia Foundation for Rape Information and Services; or
(vi) Documentation not specifically identifed in this paragraph
but having equivalent circumstantial guarantees of trustworthiness.
(E) For the purposes of this subdivision, an individual may not
be disqualified if the individual left his or her most recent work
to care for an immediate family member with an illness or disability
that is certified by a licensed physician and that necessitates the
care of the immediate family member for a period of time longer than
the employer will grant leave, paid or otherwise. For the purposes of this paragraph "immediate family member" includes a spouse,
parent, child under eighteen years of age, adult child, grandchild,
grandparent, step-child, parent-in-law, brother, sister, step-
brother and step-sister.
(F) For the purposes of this subdivision, an individual may not
be disqualified if the individual left his or her most recent work
to relocate in order to accompany the individual's spouse:
(I) To a place from which it is impractical for the individual
to commute; or
(ii) Due of a change in the location of the spouse's
employment.
(2) For the week in which he or she was discharged from his or
her most recent work for misconduct and the six weeks immediately
following such week; or for the week in which he or she was
discharged from his or her last thirty-day employing unit for
misconduct and the six weeks immediately following such week. Such
disqualification shall carry a reduction in the maximum benefit
amount equal to six times the individual's weekly benefit. However,
if the claimant returns to work in covered employment for thirty
days during his or her benefit year, whether or not such days are
consecutive, the maximum benefit amount shall be increased by the
amount of the decrease imposed under the disqualification; except
that:
If he or she were discharged from his or her most recent work
for one of the following reasons, or if he or she were discharged from his or her last thirty days employing unit for one of the
following reasons: Gross misconduct consisting of willful
destruction of his or her employer's property; assault upon the
person of his or her employer or any employee of his or her
employer; if such assault is committed at such individual's place
of employment or in the course of employment; reporting to work in
an intoxicated condition, or being intoxicated while at work;
reporting to work under the influence of any controlled substance,
as defined in chapter sixty-a of this code without a valid
prescription, or being under the influence of any controlled
substance, as defined in said chapter without a valid prescription,
while at work; adulterating or otherwise manipulating a sample or
specimen in order to thwart a drug or alcohol test lawfully required
of an employee; refusal to submit to random testing for alcohol or
illegal controlled substances for employees in performing a safety
sensitive positions duty as defined in section two, article one-d,
chapter twenty-one of this code; arson, theft, larceny, fraud or
embezzlement in connection with his or her work; or any other gross
misconduct, he or she shall be and remain disqualified for benefits
until he or she has thereafter worked for at least thirty days in
covered employment: Provided, That for the purpose of this
subdivision, the words "any other gross misconduct" shall include,
but not be limited to, any act or acts of misconduct where the
individual has received prior written warning that termination of
employment may result from such act or acts.
(3) For the week in which he or she failed without good cause
to apply for available, suitable work, accept suitable work when
offered, or return to his or her customary self-employment when
directed to do so by the commissioner, and for the four weeks which
immediately follow for such additional period as any offer of
suitable work shall continue open for his or her acceptance. Such
disqualification shall carry a reduction in the maximum benefit
amount equal to four times the individual's weekly benefit amount.
(4) For a week in which his or her total or partial
unemployment is due to a stoppage of work which exists because of
a labor dispute at the factory, establishment or other premises at
which he or she was last employed, unless the commissioner is
satisfied that he or she: (1)(I) Was not participating, financing
or directly interested in such dispute; and (2)(ii) did not belong
to a grade or class of workers who were participating, financing or
directly interested in the labor dispute which resulted in the
stoppage of work. No disqualification under this subdivision shall
be imposed if the employees are required to accept wages, hours or
conditions of employment substantially less favorable than those
prevailing for similar work in the locality, or if employees are
denied the right of collective bargaining under generally prevailing
conditions, or if an employer shuts down his or her plant or
operation or dismisses his or her employees in order to force wage
reduction, changes in hours or working conditions. For the purpose
of this subdivision if any stoppage of work continues longer than four weeks after the termination of the labor dispute which caused
stoppage of work, there shall be a rebuttable presumption that part
of the stoppage of work which exists after a period of four weeks
after the termination of the labor dispute did not exist because of
the labor dispute; and in that event the burden shall be upon the
employer or other interested party to show otherwise.
(5) For a week with respect to which he or she is receiving or
has received:
(a) Wages in lieu of notice;
(b) Compensation for temporary total disability under the
workers' compensation law of any state or under a similar law of the
United States; or
(c) Unemployment compensation benefits under the laws of the
United States or any other state.
(6) For the week in which an individual has voluntarily quit
employment to marry or to perform any marital, parental or family
duty, or to attend to his or her personal business or affairs and
until the individual returns to covered employment and has been
employed in covered employment at least thirty working days.
(7) Benefits shall not be paid to any individual on the basis
of any services, substantially all of which consist of participating
in sports or athletic events or training or preparing to so
participate, for any week which commences during the period between
two successive sport seasons (or similar periods) if such individual
performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual
will perform such services in the later of such seasons (or similar
periods).
(8) (a) Benefits shall not be paid on the basis of services
performed by an alien unless such alien is an individual who was
lawfully admitted for permanent residence at the time such services
were performed, was lawfully present for purposes of performing such
services or was permanently residing in the United States under
color of law at the time such services were performed (including an
alien who is lawfully present in the United States as a result of
the application of the provisions of Section 203(a)(7) or Section
212(d)(5) of the Immigration and Nationality Act): Provided, That
any modifications to the provisions of Section 3304(a)(14) of the
Federal Unemployment Tax Act as provided by Public Law 94-566 which
specify other conditions or other effective date than stated herein
for the denial of benefits based on services performed by aliens and
which modifications are required to be implemented under state law
as a condition for full tax credit against the tax imposed by the
Federal Unemployment Tax Act shall be deemed applicable under the
provisions of this section;
(b) Any data or information required of individuals applying
for benefits to determine whether benefits are not payable to them
because of their alien status shall be uniformly required from all
applicants for benefits;
(c) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such
individual are not payable because of his or her alien status shall
be made except upon a preponderance of the evidence.
(9) For each week in which an individual is unemployed because,
having voluntarily left employment to attend a school, college,
university or other educational institution, he or she is attending
such school, college, university or other educational institution,
or is awaiting entrance thereto or is awaiting the starting of a new
term or session thereof, and until the individual returns to covered
employment.
(10) For each week in which he or she is unemployed because of
his or her request, or that of his or her duly authorized agent, for
a vacation period at a specified time that would leave the employer
no other alternative but to suspend operations.
(11) In the case of an individual who accepts an early
retirement incentive package, unless he or she: (I) Establishes a
well-grounded fear of imminent layoff supported by definitive
objective facts involving fault on the part of the employer; and
(ii) establishes that he or she would suffer a substantial loss by
not accepting the early retirement incentive package.
(12) For each week with respect to which he or she is receiving
or has received benefits under Title II of the Social Security Act
or similar payments under any act of Congress, or remuneration in
the form of an annuity, pension or other retirement pay from a base
period employer or chargeable employer or from any trust or fund contributed to by a base period employer or chargeable employer or
any combination of the above, the weekly benefit amount payable to
such individual for such week shall be reduced (but not below zero)
by the prorated weekly amount of said benefits, payments or
remuneration: Provided, That if such amount of benefits is not a
multiple of $1, it shall be computed to the next lowest multiple of
$1: Provided, however, That there shall be no disqualification if
in the individual's base period there are no wages which were paid
by the base period employer or chargeable employer paying such
remuneration, or by a fund into which the employer has paid during
said base period: Provided further, That notwithstanding any other
provision of this subdivision to the contrary, the weekly benefit
amount payable to such individual for such week shall not be reduced
by any retirement benefits he or she is receiving or has received
under Title II of the Social Security Act or similar payments under
any act of Congress. Claimant may be required to certify as to
whether or not he or she is receiving or has been receiving
remuneration in the form of an annuity, pension or other retirement
pay from a base period employer or chargeable employer or from a
trust fund contributed to by a base period employer or chargeable
employer.
(13) For each week in which and for fifty-two weeks thereafter,
beginning with the date of the decision, if the commissioner finds
such individual who within twenty-four calendar months immediately
preceding such decision, has made a false statement or representation knowing it to be false or knowingly fails to disclose
a material fact, to obtain or increase any benefit or payment under
this article: Provided, That disqualification under this
subdivision shall not preclude prosecution under section seven,
article ten of this chapter.
NOTE: The purpose of this chapter is to permit certain part-
time employees to be eligible for unemployment compensation
benefits. The bill permits employees who have left employment due
to being a victim of domestic violence, sexual assault or stalking
to be eligible for unemployment compensation benefits. The bill
permits employees who have left employment to care for disabled or
ill immediate family members to be eligible for unemployment
compensation benefits. The bill also permits employees who have left
employment due to the transfer or relocation of a spouse to be
eligible for unemployment compensation benefits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.